708 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 on a bilateral basis, in which case loss of nationality in one party would be recognized upon naturalization in the other—a mechanism first introduced by the so-called Bancroft treaties between the United States and several German principalities that were concluded in 1868.87 Whether by law or treaty, this approach prefigured the dominant and effective test; expatriation would be effected where an individual shifted his identity to another state. Under the Bancroft agreements88 and at least some statutory regimes,89 individuals returning to reside permanently in their countries of origin would revert to their original nationalities, reflecting the restored primacy of the homeland tie. Expatriation did not, in fact, constitute a right, at least in the sense of an individual entitlement exercisable against a state. Rather, the “right” was being asserted by one state against another; in effect, one state was claiming to have exclusive sovereign power over an individual who was also claimed by another state.90 Through the late nineteenth century, the United States sought an international legal requirement that states provide for the possibility of expatriation. Assuming that possibility, expatriation was conceived not as an individual right but as an individual duty; the naturalizing American was expected to shed the former nationality.91 That was typically mandated by sending states, whose expatriation regimes provided for the termination of nationality upon naturalization before another sovereign.92 As a practical matter, naturalizing citizens had a significant interest in canceling their original nationalities and the often substantial, duplicative burdens that came with them.93 Even so, expatriation was conceived as a matter of state interest— or at least in the interest of immigration-receiving states. Expatriation allowed the state of naturalization to perfect its claim to its new citizen, eliminating the risk of bilateral disputes in the process. Expatriation presented a mechanism for more clearly demarcating the boundaries of human community represented by states. In contrast to the Nottebohm approach, an international requirement on states to provide for expatriation posed the prospect of a constraint on nationality determinations and not merely their international effect. That is, if perfected, the “right” to expatriation would have constrained states in their municipal determinations of national membership. That may further explain why the assertion of such a norm was vigorously contested.94 It challenged not only the principle of perpetual allegiance, but also the core international law notion that the terms of nationality were for states alone to determine. before another state party. Montevideo Convention on the Rights and Duties of States, Art. 1, Dec. 26, 1933, 49 Stat. 3097, 165 LNTS 19. 87 See 3 MOORE, supra note 6, §§390 – 400; Spiro, supra note 24, at 1428. 88 See BORCHARD, supra note 18, at 550 –52. 89 See, e.g., Expatriation Act of 1907, Pub. L. No. 59-193, 34 Stat. 1228 (repealed 1940) (creating presumption that naturalized citizens who reestablished residence in original country renounced citizenship). “In foreign countries a subject who has lost his status through naturalization elsewhere can usually resume his national character as soon as he returns with the intention of residing.” Edward Louis de Hart, The English Law of Nationality and Naturalization, 2 J. SOC’Y COMP. LEGIS. 11, 19 (1900). 90 See Brownlie, supra note 14, at 343 (“it is not the case, in the light of existing practice, that the individual has such a right [of expatriation]”). 91 See Spiro, supra note 24, at 1423–24. 92 See WEIS, supra note 13, at 132–33. 93 See BAR-YAACOV, supra note 4, at 266. 94 Hudson Report on Nationality, supra note 17, at 11 (“In the present stage of development of international law it cannot, in view of the divergences of State practice, be said that there is, under international law, a duty of States to withdraw their nationality upon foreign naturalization.”). This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms